Copyright in a YouTube world

Updated 02 May 2024

The trend in social media now is that online content is rapidly moving toward video. Whether it be on Facebook, X (previously Twitter), YouTube, and Instagram, especially with the rise of TikTok.

On the legal side, this sheer volume of video being created, uploaded, and shared online will significantly change the landscape in the world of copyrights and, specifically, fair use.

In this article, we’ll be discussing the Canada’s intellectual property (IP) laws including its exceptions, one of which is the fair dealing or fair use in YouTube.

This article may be used by IP rights lawyers as an educational piece for their clients, or by curious influencers or content creators looking for resources on YouTube’s fair use policy.

What is fair use in YouTube all about?

Video’s engaging nature and significantly higher conversion rates are attractive alternatives to plain text for websites looking to engage and retain visitors. Especially in the world of YouTube, where currency is made up of subscriber count, views, and retention, as these garner higher advertising rates.

However, content creators, key opinion leaders, and influencers must be aware of two things:

• the applicable IP laws of their country
• the fair use policy of the social media platforms that they’re using

As such, the doctrine of fair use is becoming more prevalent on both YouTube and video content on the web.

This does not only apply to content creators, but to copyright owners as well, who will need to reevaluate what to consider infringement.

Fair use in YouTube

Fair use is the reproduction or use of copyrighted material for a limited and transformative purpose, specifically to comment upon, criticize, or parody a copyrighted work.

This use of copyrighted work does not require permission from the copyright owner and is a defence against a claim of copyright infringement.

So how does fair use in YouTube work? For example, when a YouTuber creates their own content, they may use a variety of other copyrighted original sources, such as:

• music and other original sounds
• clips from movies or TV shows
• well-known brands
• other shared content from other social media platforms

Under the fair use doctrine, these copyright-protected materials can be used without permission or consent from the copyright holder. However, for a creator’s use of copyrighted material to be covered by fair use, it must come under the exceptions of the country’s copyright laws, according to YouTube.

General rule: Canadian IP rights

Before exploring the fair use exception under Canadian IP laws, it’s important that emerging content creators first understand the general rule.

Among the different types of intellectual property in Canada is a copyright, which is regulated by the federal law called Copyright Act.

A copyright is a person’s right, which can be bought or granted by a copyright holder, to reproduce the original work of another, in any form or any substantial part of it. Under the Act, a copyright may cover any:

• literary, dramatic, non-dramatic, artistic, or musical work
• computer program or software
• performances, such as public performances and those that are fixed in a recording
• sound recording
• communication signal

As such, if a content creator’s use of copyrighted material does not fall under the fair use (or fair dealing) exception, they may be charged for copyright infringement.

This is also in addition to other sanctions that may be imposed by the social media platform, such as the removal of the content, or banning the user from future uploads.

Exception: fair dealing under Canadian IP laws

The exceptions to copyright infringement can also be found in the Copyright Act. However, instead of ‘fair use’ as used by US and other countries, the Act uses the concept of ‘fair dealing.’ There are differences between these two concepts, especially on the different purposes to be exempt from copyright infringement. This again goes back to the importance of knowing domestic IP laws if one’s business regularly deals with copyrighted materials, such as in content creation.

Purposes to be exempt under fair dealing

Under the Copyright Act, the following purposes fall under the fair dealing exception:

• research
• private study
• education
• parody
• satire
• criticism
• review
• news reporting

In other words, if an uploader uses copyrighted material for any of these purposes, there is no need to get the consent of the copyright holder.

As for criticism, review, and news reporting, the law says the source must be mentioned. This must include the name of the author, performer, maker, or broadcaster, if given in the source.

Mash-up or YouTube exception

Another exception under the Copyright Act, which is very relevant to YouTube’s fair use policy, is the “non-commercial user-generated content” exception.

Also known as the mash-up exception or YouTube exception, it provides for standards that a creator must meet so that it would be exempted from copyright infringement.

These standards are:

• the copyrighted material to be used has been published or made available to the public
• the new work is used solely for non-commercial purposes
• the copyrighted material’s source is mentioned, if it is reasonable in the circumstances
• the creator had reasonable grounds to believe that the copyrighted work does not infringe another’s copyright
• the use of the copyrighted material does not have a substantial adverse effect on the copyrighted material itself (e.g. negative financial effects)

When the creator’s use of copyrighted material – for example, for their YouTube video – does not meet these standards, it will then be considered as copyright infringement.

Common law doctrines on fair dealing

In the case of CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada established these factors in assessing whether a dealing is fair or not:

• purpose of the dealing
• character of the dealing
• amount of the dealing
• alternatives to the dealing
• nature of the work
• effect of the dealing on the work

Although this is not an exhaustive list, and will not appear in every fair dealing case, the Court says that it is still a useful framework in determining fairness in future cases.

How is fair use in YouTube enforced?

As a copyright owner, there are a variety of tools called copyright management tools to manage and enforce one’s rights on YouTube:

1. using the Content ID system
2. submitting a request for copyright removal
3. using the Content Verification Tool

When there’s a valid violation of YouTube’s fair use policy, it will remove the video from its platform, or prevent the violator from uploading their video.

YouTube says that domestic rules are also considered when responding to copyright removal requests under these following copyright management tools.

For instance, adding an advertisement on a video that uses copyrighted material may be a violation of the YouTube exception of Canada’s Copyright Act because it was used for commercial purposes.

Let’s go over the copyright management tools that YouTube uses:

1. Content ID system

First, copyright owners can use YouTube’s Content ID system, which identifies and manages their content on the platform.

Any time a video is uploaded to YouTube, it is automatically scanned against a database of copyright-protected files submitted by copyright owners.

In the event of a match, the uploaded video is flagged, and the copyrights holder has a variety of options depending on their Content ID settings, such as:

• blocking the uploaded video from being viewed
• monetizing the uploaded video by:
  • running ads against, and/or
  • sharing profits with the uploader
• tracking the uploaded video’s viewership statistics

YouTube says that these options may also apply differently in every country. In one country, the video can be monetized, while it may be blocked in another.

This video further explains the Content ID system under YouTube’s fair use policy:

Check out our practice area page on Intellectual Property for more resources, such as actual infringement cases and updates on Canadian IP laws.

2. Copyright removal request

The copyright holder may also submit a copyright claim using YouTube’s submission process.

Submitting a copyright removal request can be done through YouTube’s website, or through the copyright holder’s YouTube Studio.

Once relevant information is submitted, including demonstrating proof of ownership of the alleged work that was infringed, YouTube will issue a copyright strike on the infringing party.

Among the possible consequences of a copyright removal request are:

• preventing reuploads of the reported video, if the copyright holder selected this option against the uploader
• terminating the YouTube channel of the upload, if their channel receives three strikes already

Retracting a strike or a counter notification

In the event of a strike, a creator or channel owner has three options:

• directly deal with the copyright owner to ask them to issue a retraction of the claim
• submit a counter notification on the ground of mistake or misidentification
• wait for the strike to expire after 90 days

The retraction can be based on a variety of reasons, such as fair use for YouTube videos. Both parties may also negotiate on their own terms for retracting the copyright removal.

With a counter notification, the strike will likely be retracted by YouTube, unless the copyright claimant files a lawsuit seeking an injunction to keep it offline.

While creators will often cite fair use in counter notifications, the concept is quite complex and requires significant legal analysis. This also makes it very difficult for a content creator to fully appreciate what constitutes fair use.

It’s important to consult an IP lawyer to be sure that they’re under the exceptions of fair use or fair dealing.

3. Content Verification Tool

Once eligible, copyright owners may also use the Content Verification Tool (CVT) found in their YouTube Studio Content Manager.

It works similarly with copyright removal requests, plus an added feature of searching public YouTube videos for content which violates the owner’s copyrights.

Once a video is found that matches the owner’s content, a copyright removal request can be submitted through the CVT.

What happens when a claim for violation of YouTube’s fair use policy is invalid?

There are consequences to copyright owners who use any of the copyright management tools, if their claims are later found to be baseless, or if it validly falls as fair use in YouTube. This is why copyright owners must also be familiar with YouTube’s fair use policy before issuing notices or removal requests.

Common law on copyrights

A classic example would be the case of Stephanie Lenz, who uploaded a 29-second home video of her children in the family kitchen dancing to the Prince song “Let’s Go Crazy” in 2007.

Universal Music Corp. sent a takedown notification to YouTube. Lenz sent a counter notification claiming fair use. She later sued Universal, alleging misrepresentation under the Digital Millennium Copyright Act of the US.

The appellate court affirmed the district court’s summary judgment. It held that, before sending a takedown notice under the DMCA, a copyright holder must first evaluate if the alleged unauthorized performance constituted fair use.

Lenz and Universal agreed to a settlement in 2018.

This case has changed the landscape of YouTube and online video content, where claimants would often send automated DMCA notices. Now, parties need to demonstrate that fair use was considered first, before a notice can be sent to the alleged copyright infringer.

YouTube’s internal policy

Aside from court battles that may arise between parties, the internal policy of YouTube on fair use will also affect the copyright holder who wrongly sends a claim or notice.

Wrongful use of Content ID claims

The platform strongly reminds copyright owners to be careful before submitting a removal request, by evaluating first if fair use applies.

Copyright owners who repeatedly submit false claims, or have submitted false information, may face the consequences of:

• having their Content ID disabled
• suspension of their YouTube account
• other legal action by YouTube and/or the uploader

Disputing a Content ID claim

As for the uploaders of alleged infringed videos, YouTube allows them to dispute a Content ID claim. It may still be based on the grounds of:

• owning the rights to the video
• exemptions under the YouTube’s fair use or fair dealing
• misidentification or error on the claim

Disputes may be sent through the uploader’s YouTube Studio account.

To get more help when dealing with issues on fair use in YouTube, reach out to the best intellectual property lawyers in Canada as ranked by Lexpert.